Schmidt Bou Ontwikkelings BK v Bester en Anders (1689/2010) [2011] ZAWCHC 325 (17 August 2011)

Schmidt Bou Ontwikkelings BK v Bester en Anders (1689/2010) [2011] ZAWCHC 325 (17 August 2011)

The court found that the applicant never intended to transfer ownership of the entire Erf 3117 to Innova Holdings, but only a portion thereof. The transfer of the whole erf was effected on the basis of a forged power of attorney, and there was no real agreement between the applicant and Innova for the transfer of the remainder. The negative registration system in South African law does not guarantee the correctness of the deeds office records. The applicant's claim for rectification is not barred by prescription, as it does not constitute enforcement of a debt. The defence of estoppel raised by Absa Bank fails because the misrepresentation was not caused by the applicant but by Innova's...

Citation
[2011] ZAWCHC 325
Parties
Applicant: Schmidt Bou Ontwikkelings BK; Respondent: L Von W Bester N.O.; Respondent: EM Dorfling N.O.; Respondent: PQ Naidoo N.O.; Respondent: CP Van Zyl N.O.; Respondent: ABSA Bank Beperk; Respondent: Die Registrateur van Aktes, Wes-Kaap
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
17 August 2011
Case Number
1689/2010
Procedural Posture
Review Application / Final Judgment
Outcome
Application granted. The applicant is declared the owner of the remainder of Erf 3117, Sedgefield. The deeds office records and transport deed are rectified, the mortgage bond is cancelled, and costs are awarded against the first to fifth respondents jointly and severally.
Judges
Louw R
Legal Topics
Rectification of Title Deeds, Ownership Transfer, Mortgage Cancellation, Estoppel, Negative Registration System
Land and Property Civil Procedure Rectification of Title Deeds Ownership Transfer Mortgage Cancellation Estoppel Negative Registration System

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 10 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Schmidt Bou Ontwikkelings BK

Applicant

L Von W Bester N.O.

Respondent

EM Dorfling N.O.

Respondent

PQ Naidoo N.O.

Respondent

CP Van Zyl N.O.

Respondent

ABSA Bank Beperk

Respondent

Die Registrateur van Aktes, Wes-Kaap

Respondent

Procedural Posture

Review Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant is the lawful owner of the remainder of Erf 3117, Sedgefield.
  2. 2 Whether the deeds office records and transport deed should be rectified to reflect the true intention of the parties.
  3. 3 Whether the mortgage bond registered in favour of Absa Bank should be cancelled.

Ratio Decidendi

The court found that the applicant never intended to transfer ownership of the entire Erf 3117 to Innova Holdings, but only a portion thereof. The transfer of the whole erf was effected on the basis of a forged power of attorney, and there was no real agreement between the applicant and Innova for the transfer of the remainder. The negative registration system in South African law does not guarantee the correctness of the deeds office records. The applicant's claim for rectification is not barred by prescription, as it does not constitute enforcement of a debt. The defence of estoppel raised by Absa Bank fails because the misrepresentation was not caused by the applicant but by Innova's...

Court Disposition

Application granted. The applicant is declared the owner of the remainder of Erf 3117, Sedgefield. The deeds office records and transport deed are rectified, the mortgage bond is cancelled, and costs are awarded against the first to fifth respondents jointly and severally.

Orders

  • It is declared that the applicant is the owner of the remainder of Erf 3117, Sedgefield, held under Title Deed No. T38243/2005, measuring 5830 square meters.
  • Transport Deed No. T38243/2005 is rectified by replacing the property description on page 2 with: Erf 4675 (a portion of Erf 3117), Sedgefield, Municipality and Division of Knysna, Western Cape Province, measuring 1.3965 hectares, as indicated on plan SG No 6615/2004.